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Supreme Court Grants Writ, Orders Husted Treated as Montgomery County Resident

2009-1707.  State ex rel. Husted v. Brunner, Slip Opinion No. 2009-Ohio-5327.
In Mandamus.  Writ granted.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Moyer, C.J., concurs in Part II(C) of the opinion and in judgment.
Pfeifer, J., concurs in judgment only.
Lanzinger, J., concurs in Part II(B) of the opinion and in judgment.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-5327.pdf

(Oct. 6, 2009) The Supreme Court of Ohio today unanimously granted a writ of mandamus ordering the Montgomery County Board of Elections to treat State Senator Jon A. Husted as a resident of Montgomery County for election purposes and to maintain his name on the poll books as a properly registered Montgomery County elector for all purposes. 

In granting the writ, the Court overruled a decision of the Montgomery County elections board in which Secretary of State Jennifer Brunner cast the tie-breaking vote on Sept. 21 holding that Husted “is no longer a resident of Montgomery County and therefore is not eligible to vote there.” The board’s ruling was in response to a 2008 challenge to Husted’s residency status initiated by a nonprofit corporation and a Montgomery County elector who claimed that Husted had taken up residency in Franklin County, where he and his wife have a second home.

Noting that county boards of elections are created by statute and may only act within specific guidelines set forth in the state’s election laws, the Court observed that there are only four provisions under which a voter’s registration may be canceled, and said the election board’s action was not authorized under any of them.  “Because Husted’s registration was not canceled pursuant to one of the prescribed methods,” the Court wrote, “he has established his entitlement to the requested extraordinary relief.”

Finding that two of the four statutory grounds for cancellation were clearly inapplicable, the Court wrote: “R.C. 3503.21 describes different occurrences that will cause a registered elector’s registration to be canceled, the only potentially relevant one being R.C. 3503.21(A)(5) (‘change of residence of the registered elector to a location outside the county of registration’).  Before a voter’s registration is canceled under this subsection, the board of elections must send a confirmation notice and the registered elector must fail to respond to the confirmation notice or otherwise update the registration and fail to vote in any election during the period of two federal elections after the mailing of the confirmation notice.  R.C. 3503.21(B)(2).  Nothing in the record indicates that the board of elections ever sent Husted a confirmation notice under this subsection or that he failed to vote after any such mailing.  R.C. 3503.19(C)(2) also does not apply, because it relates to a voter’s initial registration, which is not the issue here.”

“The only remaining manner in which Husted’s registration may be canceled is R.C. 3503.24(C).  The secretary of state, however, specifically rejects this ground because she asserts that this case does not involve challenges to a person’s right to vote under R.C. 3503.24 or R.C. 3505.19.  Instead, she relies on the general provision in R.C. 3501.11(Q) granting boards of elections the authority to “[i]nvestigate and determine the residence qualifications of electors.”  The secretary of state takes an expansive view of this phrase, contending that a board of elections’ power is not limited to situations that arise under R.C. 3503.24 or 3505.19.

“As we detailed previously, however, boards of elections are created by statute and must comply with applicable statutory requirements.  ...  Furthermore, the general rule is that, unless there is language allowing substantial compliance, election statutes are mandatory and must be strictly complied with.  ... Because the General Assembly has provided specific provisions by which an elector’s voting registration may be challenged and limited the manner by which an elector’s registration may be canceled, R.C. 3503.24 and 3505.19, these statutes involving challenges to an individual’s right to vote are the statutes that control. The failure of respondents to comply with these provisions entitles Husted to a writ of mandamus.”

The Court also disagreed with Secretary of State Brunner’s determination that the facts presented to the board of elections by Husted and those opposing his continued registration in Montgomery County constituted “clear and convincing evidence” that he no longer qualified as a legal resident. 

In particular the Court took issue with Brunner’s reliance on the single fact that Husted’s wife and daughter maintain their primary residence in Franklin County as sufficient to support the board’s

decision. The Court pointed out that the residence of family members is only one of several criteria set forth in R.C. 3503.02 for determining a voter’s legal residency.

Pointing to several other criteria in the same statute that supported Husted’s position, the Court wrote:

“[T]he evidence before the secretary of the state and the board of elections established that Montgomery County is the place in which Husted’s habitation is fixed and he has the intention of returning. R.C. 3503.02(A).  In addition, Husted could not be considered to have lost his Montgomery County residence when he left the county for the temporary purpose of working as a state legislator in Franklin County with the intention of returning when that state service ends. R.C. 3503.02(B). Nor could Husted be considered to have gained a residence in Franklin County, which Husted entered for the temporary purpose of state employment only, without the intention of making that county his permanent place of abode.  R.C. 3503.02(C).”

“[T]he secretary of state erroneously relied exclusively on R.C. 3503.02(D) (which creates a presumption that the place where the family of a married person resides is the person’s place of residence) to decide the residency issue. All of R.C. 3503.02, including section D, is phrased in mandatory language, so elevating R.C. 3503.02(D) over others, e.g., R.C. 3503.02(A) through (C), without reasonable justification is impermissible.  By effectively treating the R.C. 3503.02(D) factor as the exclusive factor applicable to Husted, the secretary created an irrebuttable presumption to classify Husted as a nonresident of Montgomery County, which is not constitutionally permissible.”

The Court’s per curiam opinion was joined in full by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp. Chief Justice Thomas J. Moyer concurred in judgment and in the portion of the decision addressing the lack of clear and convincing evidence supporting the election board’s action.  Justice Judith Ann Lanzinger concurred in judgment and in the portion of the decision addressing the procedural defects of the board of elections’ proceedings. 

Justice Paul E. Pfeifer concurred in judgment only and entered a separate opinion stating that since R.C. 3503.02 allows a citizen temporarily living elsewhere to remain a resident of an Ohio county to which he intends to later return, the law “must certainly allow all members of the General Assembly to retain their residences in the places they regard to be home while living with their families in the state capital.”

Maria Armstrong, 614.227.8821, for State Senator Jon A. Husted.

Richard Coglianese, 614.466.2872, for of State Jennifer Brunner.

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